The relator, a domestic corporation organized in 1893, has a capital stock of $1,000,000 of the par value of $100 per share, all issued and outstanding. Its business consists *Page 252 of transporting mail matter under contract with the Federal government through pneumatic tubes between postal stations in the several boroughs of the city of New York. Under section 182 of the Franchise Tax Law, the comptroller assessed a tax upon the relator for the years 1907 and 1908, based upon the relator's condition in the years 1906 and 1907. This tax was assessed at the rate of ¾ of a mill upon each dollar of its capital at its par value. The comptroller asserts that the par value of the capital stock employed in this state is the correct basis for the tax, and the relator insists that it is the actual value of the capital stock.
As regards the tax for 1908, based upon the relator's condition in 1907, this case is precisely like the case of People ex rel.Fifth Avenue Building Co. v. Williams (198 N.Y. 238) in which we have just held that the statute, as it stood in 1908 and as it stands to-day, cannot be held to authorize the franchise tax of ¾ of a mill upon the par value of capital stock employed in this state as against corporations which pay no dividends or whose assets do not exceed their liabilities, exclusive of capital stock, or whose stock has not been sold within the year at an average price equal to or exceeding its par value. Our discussion of the considerations which led to that conclusion need not here be repeated at length. We held that sections 182 and 190 of the Franchise Tax Law must be read together, and when so read the language of the latter providing for an appraisal of the capital stock at its actual value must be regarded as controlling the equivocal language of the former under which the comptroller asserts the right to tax upon the basis of capital stock at its par value.
As regards the tax of 1907, based upon the relator's condition in 1906, a somewhat different question is presented. In 1906 the provisions of section 182 were substantially the same as in 1907 and 1908, but section 190 was so amended in 1906 as to have no possible application to corporations of the class to which the relator belongs. That part of section 182, as it stood in 1906, which is applicable to the relator, provided *Page 253 that as to corporations which declared no dividends or whose dividend or dividends amount to less than six per centum on the par value of the capital stock, and whose assets do not exceed the liabilities, exclusive of capital stock, or whose stock has sold during the year at an average price which did not equal or exceed its par value, should be taxed at the rate of ¾ of a mill upon "each dollar of the amount of capital stock employed inthis State." In that year (1906) section 190 had been amended so that it related wholly to corporations with dividends of less than six per cent, but with assets in excess of liabilities, exclusive of capital stock, by an amount equal to or greater than the par value of the capital stock, or whose stock had been sold during the year at an average price equal to or greater than the par value of the capital stock. The relator was clearly not within the provisions of section 190, as amended in 1906, for it is conceded that it had declared no dividend, that its liabilities were greatly in excess of its assets, and that its stock had not been sold during that year at an average price equal to or in excess of its par value.
As to the tax of 1907, based upon the relator's condition in 1906, we must, therefore, be governed wholly by the language of section 182. The substance of the declaratory clause of that section is that every corporation, etc., shall pay annually, in advance, to the state treasurer, for the privilege of doing business or exercising its franchises within this state, an annual tax "to be computed upon the basis of the amount of its capital stock, employed during the preceding year within the state, and upon each dollar of such amount." This general clause is followed by a classification of corporations into several groups, the first of which includes all those which pay dividends of six per cent or more. These are taxed at the rate of ¼ of a mill "for each one per centum of dividends made or declared upon the par value of the capital stock during said year." Here we find the language of the statute clear and unequivocal. Omitting for the moment the second group and passing to the third, we find that corporations declaring or paying dividends of less than six per centum on the *Page 254 par value of their capital stock, but having assets in excess of their liabilities, exclusive of capital stock by an amount equal to or greater than the par value of the capital stock, or whose capital stock has been sold during the year at an average price equal to or greater than the par value "shall be taxed at the rate of one and one-half mills on each dollar of the valuation of the capital employed in this State." Here we have an explicit declaration as to valuation followed by the further command that such valuation shall be not less than "(1) The par value of such stock, (2) The difference between the assets and liabilities exclusive of capital stock, (3) The average price at which such stock sold during said year." Returning now to the second group, which embraces corporations of the class to which the relator belongs, we see that when there are no dividends, or the assets do not exceed the liabilities exclusive of capital stock, or the average price at which the capital stock was sold during the year did not equal or exceed its par value, the tax is upon "eachdollar of the amount of capital stock employed in this State." The learned Attorney-General argues that because the legislature has very distinctly provided for a valuation of the capital stock of corporations embraced in the third group, and has omitted to do so as to corporations which fall within the second group, it must be assumed that as to the latter it intended to fix a minimum tax of ¾ of a mill upon their capital stock at the par value. At first impression we were inclined to this view, but a more careful consideration of the statute has brought us to a different conclusion. The theory of the statute, as disclosed by its successive amendments, seems to indicate that when the capital stock is the basis upon which the tax is to be assessed, there shall be an appraisal or valuation of the capital stock at its actual value. It is true that no such provision is to be found in that subdivision of section 182 which relates to corporations comprising the second group, but neither does it provide in explicit terms for taking the capital stock at its par value as the basis of the tax. "Each dollar of the amount of the capital stock *Page 255 employed in this state" is to be taxed under that subdivision, but whether that means the amount at its actual value or at its par value is not disclosed. The addition of a few words would have made the meaning of this part of the statute so clear as to preclude mistake or misunderstanding. As it stands, it is doubtful and equivocal. In his very forceful argument the learned attorney-general has presented all that can be said upon the subject, but the fact remains that we cannot adopt his views without construing this statute most strongly against the relator, and that is forbidden. In People ex rel. Mutual TrustCo. v. Miller (177 N.Y. 51) we reiterated the familiar rule that "A statute which levies a tax is to be construed most strongly against the government and in favor of the citizen. The government takes nothing except what is given by the clear import of the words used, and a well founded doubt as to the meaning of the act defeats the tax." (p. 57.) The application of that well-settled rule to the case at bar leaves nothing to be said except that the benefit of the doubt and uncertainty as to the meaning of this statute must be given to the relator and not to the state.
The order of the Appellate Division should be reversed and the determination of the comptroller annulled, with costs to the relator in both courts, and proceedings remitted to the comptroller for a re-assessment of the tax.